The New York City Campaign Finance Board (the "Board") has been asked by People for John Liu (the "Campaign")1, the 2009 principal committee for John Liu's 2009 campaign for comptroller, to make a determination that a Democratic Party runoff primary election2 in 2009 for the position of comptroller is "reasonably anticipated."

A Candidate Must Provide Concrete Evidence to Meet the Burden of Proof in Demonstrating that a Runoff Election is "Reasonably Anticipated"

Board Rule 1-04(q) provides that "a candidate seeking the nomination of a political party … may not accept contributions for a runoff primary election … unless the candidate has previously demonstrated to the Board that a runoff election is reasonably anticipated." 3 The candidate has the burden of showing that a runoff election is reasonably anticipated, by producing "evidence of a sufficient number of bonafide prospective opponents for that political party nomination." Advisory Opinion 1999-1 (January 7, 1999). This standard "is a lesser burden than, for example, proving that a runoff is ‘probable.'" Advisory Opinion 2001-3 (May 17, 2001). Further, "the requirement that a candidate must demonstrate that a runoff is ‘reasonably anticipated' implies that the Board must ground its determination in objective facts." Id. Board Rule 1-04 (q) also provides that contributions for a runoff election "may not be accepted once it is no longer reasonable to anticipate such a runoff election."4

The Campaign's request, which consists of a two-page letter, a thirty-page poll and press release, and two media reports totaling three pages, notes: 1) there are five potential Democratic Party primary candidates, one of whom was expected to be removed from the ballot by the Board of Elections5, 2) gross reporting in disclosure statement nine (July 15, 2009) indicates that the other four potential Democratic Party primary candidates have raised funds ranging from almost $2 million to in excess of $3 million, 3) the most recent poll indicates that for four of the five potential Democratic Party primary candidates, support is at 17 percent, 10 percent, 8 percent and 5 percent, with 55 percent of those surveyed remaining undecided, and 4) the four candidates included in the poll are all City Council Members and experienced campaigners. The letter and supporting material provide concrete evidence of four prospective opponents for the Democratic Party nomination for the office of comptroller.

A Finding that a Runoff Primary is "Reasonably Anticipated" is Based on Objective Facts

Of the previous four elections for the office of comptroller, one has had a primary runoff election.6 Media reports indicate that the candidates have received numerous endorsements from other politicians and political clubs and organizations. In one media report, a candidate is cited as stating that he believes there will be a runoff election. Two other media reports indicate a highly competitive primary race. One poll indicates that for the four potential Democratic Party primary candidates, support is at 19 percent, 13 percent, 10 percent, and 5 percent with 50 percent of those surveyed remaining undecided. The most recent poll showed these candidates at 17 percent, 10 percent, 8 percent and 5 percent, with 55 percent of those surveyed remaining undecided.

The request for this advisory opinion was submitted six weeks before the date of the scheduled Democratic Party primary election. As mentioned above, there are four potential Democratic Party primary candidates for comptroller who currently will appear on the ballot after hearings by the New York City Board of Elections. There is no incumbent in the current race. As of disclosure statement nine (July 15, 2009), covering activity through July 11, 2009, gross reporting indicates that one of the candidates in the poll raised over $3 million, two raised over $2 million each, while the fourth candidate raised almost $2 million.7 It appears unlikely that any of the four candidates in the two recent polls will leave the race before the potential primary date.

In light of the polling numbers, number of candidates, lack of an incumbent candidate, endorsements made to the candidates, contributions raised, and point in the campaign season, the Board concludes that a runoff election in the Democratic Party primary for comptroller is "reasonably anticipated."8

NEW YORK CITY CAMPAIGN FINANCE BOARD

1 The Board received a letter from Martin Connor, attorney for the Campaign, dated August 3, 2009. In the letter, the Campaign requests permission to begin raising funds for an anticipated runoff election for the 2009 comptroller's race. Mr. Liu filed a Certification with the Board for the office of comptroller for the 2009 elections.

2 When no candidate for citywide office receives more than 40 percent of the vote in a primary election, the two leading candidates participate in a runoff primary election. New York Election Law § 6-162.

3 Under Board Rule 1-04(q), once the Board makes a determination that a primary is "reasonably anticipated," participating candidates for citywide office may accept contributions for that runoff election up to one-half the amount of the applicable limitation for citywide office, as provided in section 3-703(1)(f) of the New York City Campaign Finance Act (the "Act"). The current contribution limit for participating candidates running for comptroller is $4,950. New York City Administrative Code § 3-703(1)(f). Thus, participating candidates running for comptroller could accept additional contributions of up to $2,475 for a runoff election. Id.; seealso Advisory Opinion Nos. 2001-1 (March 13, 2001), 2008-5 (July 10, 2008).

4 The Board may make a finding that a runoff primary is no longer "reasonably anticipated" based upon a submitted request or on its own initiative. Advisory Opinion 2005-2 (July 7, 2005).

5 The fifth potential Democratic Party primary candidate was removed from the ballot by the New York City Board of Elections on August 3, 2009.

6 In 1993, there was a runoff Democratic primary between Alan Hevesi and Elizabeth Holtzman.

7 The threshold requirement for participating candidates running for comptroller consists of a minimum of $125,000 in matchable contributions raised from at least 500 New York City residents. New York City Administrative Code § 3-703(2)(a)(ii).

8 There are very specific rules regarding the raising and spending of funds for the runoff. Board Rule 1-04(q) requires that: 1) contributions raised for a runoff election must be deposited into a separate account in accordance with Board Rule 2-06(c), 2) solicitations for contributions for a runoff election must expressly state that those contributions are being solicited for a runoff election that might not occur, 3) the contribution limits described in New York City Administrative Code § 3-703(1)(f) and (h) apply, and 4) a candidate's disclosure statements must include a copy of the most recent bank statement for the runoff election account. In relevant part, Board Rule 2-06(c) requires: 1) no withdrawals or transfers be made from the runoff account, except to return contributions to contributors until the first public funds for the runoff election are received, and 2) receipts for the runoff election may not be commingled with other funds or used for any election other than the runoff election. New York City Administrative Code § 3-703(1-a) prohibits participating candidates running for comptroller from accepting aggregate contributions for a runoff primary election from individuals who have business dealings with the City as defined by New York City Administrative Code § 3-702(18), in excess of $200.